This follows a final case management before two apex court deputy registrars on Wednesday.
Deputy public prosecutor Ashrof Adrin Kamarul said both Najib’s new legal team and the prosecution have filed their respective submissions in respect of the motion.
The prosecution, which is the respondent in the main appeal, have also filed its submissions for the appeal proper. Najib’s lawyers, however, have requested more time and have been given until Monday to file theirs.
In his application, Najib is saying judge Nazlan Ghazali ought to have recused himself from presiding over the trial due to a conflict of interest arising from events which took place when he was general counsel and company secretary of the Maybank Group.
The prosecution, however, says that contention cannot be raised now as the judge’s employment with the bank has been in the public domain since 2018, even before the commencement of the SRC trial in April 2019.
Lawyer A Srimurugan says that if Najib’s application is allowed, the appeal proper must be adjourned to enable the new evidence to be taken.
He says that under Section 93 of the Courts of Judicature Act, 1964 the evidence may be taken either in the apex court or the high court.
“In all probability, the apex court will order that the evidence be taken in the high court, but before another judge since Nazlan himself is the subject of the dispute,” he said.
Srimurugan said that for Najib to be successful, his lawyers must satisfy the common law principles for admission of new evidence established in R v Parks.
That involves showing that the evidence was not available during trial, was relevant to the issues raised, credible and might create a reasonable doubt in the outcome of the trial.
Najib’s lawyers want evidence taken from former 1MDB chief executive officer Shahrol Azral Ibrahim Halmi, SRC case investigating officer Rosli Hussein and three Malaysian Anti-Corruption Commission officers who recorded statements from Nazlan recently.
Srimurugan said that, if ordered, the fresh evidence will be added to the appeal record before the Federal Court.
“The Federal Court will then hear the main appeal and finally decide whether to allow Najib’s appeal and acquit him, or order a retrial,” he said.
In the alternative, he said the Federal Court could uphold the conviction and sentence handed down by the High Court and affirmed by the Court of Appeal.
On July 28, 2020, Najib was convicted on seven charges of abuse of power, money laundering and criminal breach of trust (CBT) over SRC International funds amounting to RM42 million. He was convicted and sentenced to 12 years’ imprisonment and an RM210 million fine.
On Dec 8 last year, the Court of Appeal upheld both the conviction and sentence. However, Najib was released on bail pending his final appeal before the Federal Court.